The Justice Department may have started on the ground floor last week by arresting a former BP engineer in connection with the criminal investigation into the 2010 oil spill in the Gulf of Mexico. Prosecutors, after all, typically squeeze the rank and file to get more information on the higher-ups. But the text messages that Kurt Mix is accused of deleting from his iPhone — constituting, federal prosecutors allege, obstruction of justice — paint a clearer picture of how this accident grew into the worst environmental disaster in this nation's history. Prosecutors should aggressively pursue the investigation and bring those responsible to justice.
Federal authorities charged Mix with two counts of obstruction of justice, the first criminal charges stemming from the Deepwater Horizon disaster. As a drilling engineer, Mix was involved with several attempts to stop the leak, including the "top kill," which called for pumping mud and other materials into the broken wellhead in an attempt to cap the flow of oil.
Prosecutors allege that in October 2010, after being told by BP to retain his electronic files related to the spill, Mix deleted more than 200 text messages with a BP supervisor. The texts included information collected in real time that indicated the top kill procedure was failing, according to the complaint. One deleted text declared: "Too much flowrate — over 15,000." Before top kill commenced, engineers said the procedure would likely not work if the flow exceeded 13,000 to 15,000 barrels a day. Mix's text not only put the flow rate above that threshold. It was three times higher than the 5,000 daily barrels BP publicly acknowledged was leaking.
Mix's attorney downplayed the charges, saying he had retained the same information on emails obtained by the government. But the issue isn't whether Mix's text is a smoking gun. The question is whether BP lowballed the flow rate all along, and whether those low estimates caused emergency workers to waste time on futile responses that allowed more oil to leak, worsening the damage and prolonging the cleanup.
Who knew what about the flow rate is central to parsing out responsibility for this disaster. The estimates of the leak ranged from zero in the first days — "We do not see a major spill emanating from this incident," the Coast Guard on-scene commander declared — to later estimates of 1,000, 5,000 and 12,000 barrels a day. The actual flow was far greater — about 60,000 barrels a day — which helps explain why BP halted the top kill after three failed attempts. But by then, the company had delayed other containment efforts that could have captured many thousands of barrels of oil. "In retrospect," investigators for the National Spill Commission appointed by President Barack Obama found, "if BP had devoted a fraction of the resources it expended on the top kill to obtaining a more accurate early estimate of the flow rate, it might have better focused its efforts on the containment strategies that were more likely to succeed."
The Justice Department needs to aggressively pursue the case. Nailing down who knew what and when could factor into whether BP pays a premium for gross negligence on its per-barrel Clean Water Act fines. It also would shed light on the risks of continuing to rely heavily on the oil companies to police themselves.